Life in crime | Crystal clear

The claimant in R (on the application of F) v DPP [2013] EWHC 945 (Admin) sought judicial review of the DPP's decision, based upon a thorough review by his principal legal adviser, not to prosecute her former partner for rape or sexual assault. The facts of the case make for sorrowful reading, but criminal practitioners will be depressingly familiar with the story of the dominant husband whose wife's consent becomes an act of obedience. The issue that Alison Levitt QC had wrestled with was whether there was ever a point in the various incidents described, taking the claimant's evidence at face value, that there was any realistic prospect of a jury being sure that her partner would have known that she was not consenting.

Lord Judge drew on three particular incidents in his analysis, illustrating a continuing pattern that gave context to the third incident upon which the case eventually turned. The claimant had consented to intercourse on the strict understanding that her partner would not ejaculate inside her (she was not using birth control and did not want another child). During the characteristically dominant sexual act, her partner is alleged to have told her that he was not going to adhere to her wishes "because you are my wife and I'll do it if I want", before then ejaculating which led to her pregnancy.

The court's decision is extremely focused on the issues in the case and makes little reference to the relevant public law principles, save to emphasise how rarely it will be appropriate to interfere with a decision by the CPS not to prosecute. In reality this judgment was written for ready assimilation into Archbold and Blackstone, and the principle is simple: where a defendant deliberately ignores the basis of consent to penetration then that is capable of vitiating the consent.

What is vital to appreciate, however, are the relatively stark facts of this case. On the claimant's evidence her partner effectively announces the termination of the consent by making it plain that he knows she does not consent to what he is about to do but he is going to do it anyway. Paragraph 24 of the judgment is dedicated to ensuring that there is no suggestion by their lordships that accidental or premature ejaculation would have the same effect. These things happen'. Similarly the ways in which sexual relationships may develop are intensely private matters.

This case does not therefore mark a radical change in the law as to rape and consent, but rather exemplifies a principle that ought always to remain crystal clear. A woman's consent to sex involves a broader exercise of choice and where a man consciously undermines that choice in the exercise of control over her then it should be open to a jury to question his reasonable belief in her consent.